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Thursday, November 22, 2012

Religion, law and Bhagat Singh

When the East India Company first came to India in 1601, it claimed — through the principle of extraterritoriality — to be governed by its own laws, rejecting lex loci or the local laws of the Mughal Empire and its feudatories. Accordingly, the earliest charters empowered the East India Company to draw up reasonable laws in consonance with the principles of English common law. The charter of 1726 applied the laws of England, in entirety, directly to the East India Company’s holdings in India, namely the towns of Calcutta, Madras and Bombay, and all their residents. English law was applied in these towns not just to the English settlers and traders but all communities, castes and people residing within the boundaries of these towns, without any distinction.

Clive’s victory at Plassey against Nawab Siraj-ud-Daula of Bengal changed the tenor of the East India Company’s engagement in the subcontinent. The East India Company graduated from being a trading concern with an army to an empire. Now the British had to contend with the administration of vast territories and not just three presidency towns. Conventional wisdom dictated that given the enormous disparity between the numbers of the conquerors and the conquered, the conquerors needed to distinguish themselves and raise themselves higher than the conquered. Many Company administrators felt that it was in any event impossible to impose the law of England in entirety to India, where Hindu and Muslim laws governed most of the daily conduct of affairs. Accordingly, the British attempted to codify Hindu and Muslim laws and blend them with English common law traditions. The first Governor General of India, Lord Warren Hastings, ordered that the Holy Quran for Muslims and Shastras for Hindus would govern all suits regarding inheritance, marriage, etc, and “maulvis shall be in attendance and shall expound the law”. This established what has since then been called ‘personal law’ in Indian (and Pakistani) jurisprudence. A codified personal law brought religion into temporal law.

It is a moot point that the British gave the subcontinent a measure of political unity, which was not there before. It is not hard to imagine how things would have panned out if the British had stuck to their guns about imposing uniform English law on the Indian population. Had they succeeded, they might well have been able to eradicate religious and caste divisions in India in 100 years. Had they failed, which was more likely, the subcontinent would have been spared 200 years of colonial exploitation. Instead, while the British left the successor states, i.e. India, Pakistan and Bangladesh a great deal in terms of a legal system, a somewhat uniform system of government, railways, etc, the compromises the British made with local customs and traditions have ensured that the subcontinent continues to battle with parochialism of many kinds. The question of personal law in India divides the right, the centre and the left. Despite its recent capitalist progress, India still faces strong caste challenges as well as religious challenges and much of this can be traced back to the mixing of religion and law that the British laid the foundations of more than two centuries ago. If the situation is bad in India, it is even worse in Pakistan. General Ziaul Haq’s military rule saw an experiment with direct application of Sharia through the existing framework of laws and courts. In a way, the experiment that the British started with tolerating personal law, so long as it did not offend the European sense of justice, under Warren Hastings, ended with an experiment where under General Zia, Pakistan was tolerating the English legal traditions it inherited, provided these could be used to forward a selective interpretation of Islamic law by scholars who backed the general.

Timur Kuran, a political economist from Duke University and a professor of Islamic Studies, has written about the inability of Muslim societies to establish capitalist societies as a consequence of Islamic law. His argument focused on economic restrictions and not cultural conservatism per se. However, the impact of cultural conservatism and insulation is equally disastrous in terms of the intellectual and moral growth of a people. An example of this is the recent hoopla over the renaming of Shadman Chowk as Bhagat Singh Chowk by the City District Government of Lahore. A petition has been filed against it in the Lahore High Court, which states that the Shadman Chowk should be renamed after Chaudhry Rehmat Ali instead and the High Court has stayed the naming. Religious bigotry has triumphed not just over reason and common sense but over history.

When Bhagat Singh Shaheed was incarcerated in Lahore, the loudest voice in his support was not that of Gandhi or Nehru, it was of Quaid-e-Azam Mohammed Ali Jinnah. Jinnah said: “The man who goes on hunger-strike has a soul. He is moved by the soul and he believes in the justice of his cause; he is not an ordinary criminal who is guilty of cold-blooded, sordid, wicked crime. What was he driving at? It is the system, this damnable system of Government, which is resented by the people” (A G Noorani, The Trial of Bhagat Singh, 1996, see page 76).

Instead, the defenders of Pakistan’s ideological frontiers would want the Shadman Chowk to be named after Chaudhry Rehmat Ali. Perhaps they should read what Rehmat Ali had to say about Quaid-e-Azam. Being deeply offensive, it is not worth reproducing in a newspaper. The irony is that no petition has been filed in the Lahore High Court against the renaming of Fort Road after Maulana Azad, the main Muslim opponent of the Pakistan Movement who rallied the ulema against Jinnah and the Muslim League. Oh no, we do not have a national lens to look through but only a religious one and Maulana Azad is a great Islamic scholar. This is what happens when you let religion straddle the law. This is what the British started two centuries ago.

Bhagat Singh Shaheed was a son of this soil who was executed right here in Lahore. His name deserves to be celebrated and commemorated. He did not belong to India alone. He is part of Pakistan’s heritage.

The writer is a lawyer based in Lahore and the author of the book Jinnah; Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com